As
an employer, you will most likely be faced at some time with a
complaint of harassment. What you do after receiving this
complaint could determine whether you are able to resolve the matter
in-house and consistent with your harassment-free workplace policy, or
whether you end up with a workplace in chaos and involved in
litigation.

By now, every employer in California probably knows that it must
respond to harassment complaints with an investigation. The
standard in the human resources industry requires that an investigation
be prompt, thorough, and effective. Accordingly, many articles
have been written suggesting the best way to meet that standard.
This particular article will focus on the first step of the
investigation process – choosing the right person to investigate the
complaint.

First of all, your investigator should be viewed by employees as
someone who is unbiased, fair, and impartial. Even the appearance
of bias could be a problem. In that regard, the investigator
should not have a personal or work relationship with either party to
the complaint. For instance, you would want to avoid using an
investigator who carpools, regularly shares lunch, supervises, or
socializes with one of the parties. Using an investigator who
reports to one of the parties could also be problematic – especially if
there is a direct reporting relationship. Likewise, the
investigation should not be supervised or controlled in any way by a
person who fails to meet the impartiality test.

In addition to being impartial, the investigator should be experienced
and trained in conducting investigations. They should have
acquired the skills necessary to:

ask questions in a non-aggressive manner,

calmly elicit information from witnesses who are reluctant to participate,

collect and evaluate documentation,

handle confidential information with discretion,

make credibility decisions, and

reach conclusions based on the findings.

One
of the questions employers often face is whether the investigation
should be done by their legal counsel, or by a third party
investigator. The answer to this question depends on a number of
factors. In addition to meeting the criteria described in this
article, the investigator must have the time to conduct a prompt and
thorough investigation, in addition to his or her other duties.
Perhaps the company has chosen the perfect person to investigate the
complaint, however, that person is unavailable for the next 3
months. Whether that person is someone in-house, the company’s
legal counsel, or a third party investigator, delaying an investigation
to the point where it is no longer “prompt” will be a
problem. This delay will become an even bigger problem if
the company is unable to offer a reasonable explanation during
litigation.

The investigator must be able to write a clear, comprehensive, final
investigation report. This written report may be used by the
employer to defend itself in litigation, so it is worth the additional
investment.

Because the investigator may be called upon to defend the investigation
and the final report in a courtroom or at a deposition, the
investigator should have excellent communication skills and the ability
to be an effective and credible witness.

Finally, if the company wants its investigation to be covered by the
attorney/client privilege or the attorney’s work product theory, it
should have a discussion with its legal counsel to get advice and input
on the selection of the investigator.

Patricia has been certified as an expert in Human
Resources matters by courts in Northern California. She has been engaged to
review and analyze cases, offer opinions, write reports, and conduct
research.

When
an employee complains that a supervisor, manager, or another employee
has acted inappropriately, the company should respond
immediately. If the allegation involves sexual harassment or
discrimination, an immediate and thorough investigation should be
conducted.